ADITYA PRASAD Vs. ISHWAR SINGH

JUDGEMENT

(1.) This is an appeal against the order of the Subordinate Judge of Gaya, dated 27 August 1934, in which he refuses to issue a warrant of arrest in execution of the appellants decree for money. A decree was passed on 29 March 1934. Application for execution was made on 9 May. On the opening day, after the vacation which was the 2 July, 1934, the non-executants of the thika lease appealed to the High Court in Appeal No. 85 of 1934. In their application for execution the appellants had asked for execution against immoveable properties specified, and moveable properties, whereof the details would be submitted later, and by issuing, warrant of arrest against the judgment debtors. On the 11th August the trial Court stayed execution under Rule 6(2) of Order 41 treating the properties attached as security with the proviso that if as a result of a proceeding under Order 21, Rule 66 those properties be found to be short of the decretal amount, additional properties will be demanded of the judgment-debtor by way of security up to the decretal amount. The decree-holder on the 20 August filed the application which was dismissed in the order now impugned. He further appealed to the High Court against the order of stay of execution and his application was rejected.

(2.) Mr. Rajkishore Prasad on behalf of the appellants urges that there is no bar in law against the two forms of execution proceeding simultaneously; and, secondly, that his discretion was not rightly exercised by the learned Subordinate Judge. We may agree with the first point and cases may conceivably occur in which simultaneous execution by two or more methods might be in reasonable and feasible. On the second point, however, the argument is less well founded. Manifestly there is already sufficient security for the realisation of the decretal amount and from the dates already given the procedure of the decree-holder savours rather of harassment than of a genuine desire to realise the decretal amount. It cannot therefore be stated that the learned Subordinate Judge exercised his discretion in an unreasonable manner. We have, however, examined the First Appeal No. 85 of 1934 and found that both parties have been lax in prosecution of the appeal. If this should continue and the bearing of the appeal be thereby delayed, the appellant might possibly have a case for more drastic action in the execution department; but for the present we see no reason to differ from the order under appeal merely stating that there appears to be no serious objection to execution being taken out against the moveable property forth with.

(3.) The appeal is dismissed with costs. Mohammad Noor, J.